Chapter 7 of The Drug Legalization Debate, edited by James A. Inciardi

From the SAGE Publications series: Studies in Crime, Law and Justice Vol 7. ISBN 0-8039-3678-8

The concept of marijuana legalization has gone in and out of vogue over the past 20 years, as several states, either de jure or de facto, have decriminalized its possession and use. Some describe the cause of decriminalization in the 1970s as a wave of permissive liberalism. This is hardly the case, however.
In the early 1970s, a presidential commission chaired by the former Republican governor of Pennsylvania, Raymond P. Schafer, called for federal decriminalization and eventual legalization, regulation, and control of marijuana (National Commission on Marihuana and Drug Abuse, 1972).
The commission concluded that marijuana should be decriminalized. This was not interpreted as a license to abuse substances. In fact, the Shafer Commission's overriding concern was reducing substance abuse. According to the report, "On the basis of our findings, discussed in previous Chapters, we have concluded that society should seek to discourage use, while concentrating its attention on the prevention and treatment of heavy and very heavy use. The Commission feels that the criminalization of possession of marihuana for personal use is socially self-defeating as a means of achieving this objective" (National Commission on Marihuana and Drug Abuse, 1972).
In 1977, Senator Jacob Javits and Representative Edward Koch introduced a bill to federally decriminalize marijuana. Although both congressmen were Democrats, their motivation for this bill had as much to do with the economics of pursuing marijuana users, then estimated at 13 million, as the undesirability of seeking to imprison such a large portion of the national population (Koch, 1977).
Today, government surveys estimate the number of regular marijuana users at about 11.8 million (NIDA, 1988). The cost of pursuing and punishing 11.8 million marijuana users, if that is all there are, would be enormous, both financially and societally.
NORML and others are skeptical of the government's ability to take an accurate survey of any criminal behavior. Such estimates inevitably underreport the actual number of users for several reasons, including agency bias and respondents' fear of disclosure. This will present problems when marijuana is legalized. The number of reported users will appear to skyrocket. The number of users may in fact increase slightly; however, the biggest increase will come from those who failed to report their use while it was illegal. The difference between truly new users and users previously hidden in the general population will not be immediately apparent. Thus estimates of the impact of legalization will have to be tempered appropriately.
Currently, only a small fraction of offenders are actually caught. The public concern over violence stems largely from the trade in crack cocaine, methamphetamine, and other dangerous drugs. The question becomes, do we have the luxury to continue sending police after marijuana bushes, or is there a more effective, less wasteful means to control marijuana use?
The alternatives include: (1) continue the present system of catching a few and making examples of them; (2) fully decriminalize the possession and use of marijuana in private by adults, as 11 states have attempted to do; or (3) legalize, regulate, and control marijuana, a substance that DEA Administrative Law Judge Francis Young called "the safest therapeutically active substance known to man" (Young, 1988).
Another option, actually only an expansion of the current system, would mean arresting, prosecuting, and punishing a significant percentage of the estimated 11.8 million regular marijuana offenders. This idea should be discarded as impossible and undesirable. In 1988, law enforcement authorities made 1,155,200 criminal arrests for all drug offenses (FBI, 1989). Of these, more than 324,000 arrests were for simple possession of marijuana (FBI, 1989).
It is unreasonable to increase by 12 times the number of drug arrests made annually, and add the proportionate amount of resources to the criminal justice system, simply to crack down on marijuana users. There are higher priorities for the criminal justice system and for society as a whole. Significant expansion of criminal justice efforts directed solely against occasional marijuana use would be unworkable because of the cost. It would also further compound crime problems, since resources would be diverted from pursuit of violent criminals toward marijuana users, sellers, and growers.
The ethics of any society that criminalizes and seeks to punish 5% of its population over a simple plant must be called into question. The rationale behind such a scheme must be questioned critically, and the costs of both dollars and lives ruined by a criminal drug arrest must be considered.
There is also the question of how to enforce the prohibition. Marijuana is simply the dried leaves and flowers of the cannabis plant. The cannabis plant grows easily almost anywhere in the world, and is produced and sold in all 50 states. It grows wild as a weed throughout the United States and in many other parts of the globe. The plant may be grown either outdoors or indoors, using very simple gardening techniques. It is possible for any individual to violate the current marijuana prohibition with very little chance of detection.
For these reasons among others, criminalization of marijuana must be discarded as an option. How can society control marijuana? This article argues that the best available option is regulation of the market through civil means. This civil regulation could take any of several forms. NORML has developed a system for such regulation, and several others have been proposed in the past. Existing methods for control of legal drugs (e.g., alcohol, tobacco, aspirin) could serve as models for a marijuana regulation system. Both positive and negative experiences with legal drugs could be used to help formulate the best possible system.
Specifics are important, but a lack of consensus among law-makers on an agreed-upon model should not end the discussion. Rather, it should serve as a touching-off point for discussion. The question should not be, as it has been legislatively, "How can we best proceed within the limited constraint of prohibition as decided several decades ago?" but rather "How can we best regulate, control, and discourage the use and abuse of marijuana?" The answer to that question is simple: Legalize marijuana, regulate it, and tax the commerce.

CURRENT STATE OF MARIJUANA PROHIBITION

The goals of a particular program or policy and its success or failure at meeting these goals must be reviewed in order to analyze the policy. In terms of marijuana as with other illegal drugs, the goal of current policy is twofold: (1) halt use, and (2) suppress production and trafficking. How successful has the government's war on marijuana been? A number of indicators give a contradictory view.
For example, the 1988 NIDA Household Survey of drug use in the noninstitutionalized population referred to above estimates that 11.8 million people use marijuana once per month or more. This is a decrease of roughly 37% from 1985, when an estimated 18 million were regular users (NIDA, 1988).
Other indicators tell a different story, however. The National Narcotics Intelligence Consumers Committee, for example, estimates that in 1985 there were 6,400-8,300 metric tons of marijuana available for consumption (NNICC, 1988). NNICC reports that in 1988, 12,13016,7 10 metric tons were available for consumption (NNICC, 1989). The NNICC also reports that domestic production of marijuana has increased and notes that marijuana prices have risen in the last 5 to 10 years (NNICC, 1989). NORML contends, and many formal and informal indicators support the contention, that the NNICC estimate is itself an underestimate. The extent is difficult to determine because of the illegal nature of the trade; however, it is substantial.
Emergency room mentions of marijuana and hashish have also increased dramatically, from 3,818 in 1985 to an estimated 8,200 in 1988 (NNICC, 1989). Note that there is a very high degree of concomitance associated with these figures. More than 80% of the mentions are in combination with other drugs (NIDA, 1988).
Without a reliable count of the number of marijuana users, the full extent of the prohibition policy's failure is difficult to determine. The fact that 33% of the U.S. population 12 years of age or older, 65,748,000 people, admit to using marijuana at some time in their lives (NIDA, 1988), indicates that the policy has failed at its primary goal of stopping use. How badly the policy has failed must remain a matter for conjecture until prohibition is repealed.
The question thus must be, where do we go from here? The federal government has pushed since 1981 for increases in fines, penalties, and other criminal justice sanctions for marijuana use. Combined federal, state, and local expenditures were estimated at more than $10 billion in 1987 (Nadelmann, 1989), and the costs continue to escalate. The federal antidrug budget alone for 1990 totals $9.4 billion (Washington Post, 1989).
In addition, countless lives and reputations are ruined by giving otherwise lawabiding citizens an arrest record, For example, 28% of the 1,115,200 total estimated drug arrests performed in 1987 were for simple possession of marijuana (FBI, 1989). Calls by Drug Policy Director William Bennett, President George Bush, Senator Joseph Biden, and others from both ends of the political spectrum for increased efforts by law enforcement indicate that the number of arrests will be likely to increase in the future.
The other two alternatives, decriminalization and legalization/regulation, must be explored. Decriminalization of possession of marijuana is a good idea, yet without ensuring a noncriminal method of acquiring the drug, the policy falls short of the promise implied in the very term "decriminalization."
Alaska is the only state that has truly decriminalized marijuana use by allowing cultivation for private personal use. The other 10 states that decriminalized marijuana laws simply reduced the penalty classification and punishment for possession.
Under the "decriminalized" system, the user is forced to choose between either committing a major felony by cultivating plants for personal use, or purchasing marijuana from a criminal drug dealer, which perpetuates the black market and exposes the marijuana user to other drugs being peddled by the same dealer. Decriminalization does not necessarily remove the marijuana consumer from the criminal market, since the user must rely on that market to avoid committing a major felony.
Two of the alternatives for control of the marijuana market, continued prohibition and decriminalization, are inadequate. If only to reserve precious court time and jail space, decriminalization is preferable. The remaining option, marijuana legalization, regulation, and control, must be explored as the only remaining viable option.

LIKELY EFFECTS OF LEGALIZATION

Prohibitionists frequently argue that marijuana legalization would not be a panacea for the United States's drug problems. In addition, problems arising from illicit trafficking in cocaine, heroin, PCP, methamphetamine, and other drugs might still occur, as would problems arising from simple use of marijuana. The prohibitionists also argue that legalization would send the message that marijuana is good for young people to use and abuse. These may be legitimate concerns and should be addressed. The question, however, remains: what would be the real effect, on the individual and on society, of legalizing marijuana?
There are four areas of concern that must be addressed in assessing any proposal to legalize marijuana: what might a model legalization scheme look like; the effect on the criminal justice system; the financial impact; and the impact on society from legal availability of marijuana, especially as regards the use of drugs.

A MODEL SYSTEM

One of the most frequent arguments heard against legalization is the speculation over what Madison Avenue would do with drugs like marijuana or cocaine. The most important point to stress is that the system of legal marijuana need not resemble the system for either tobacco or alcohol. Those models of legalization are examples of how not to regulate and discourage use and abuse.
The American experience with these drugs and their legalization is largely responsible for the bitter taste left by discussion of drug legalization. The spectre of a marijuana "Marlboro Man" or "Buds McKenzie" attracting young people, minorities, and other populations at highest risk for drug abuse into using marijuana is frightening for most citizens. Of course, the actual blame legitimately belonging to these advertising icons is debatable. Yet, the imagery forms a frightening picture for many average citizens.
A comparison of the effects of the repeal of alcohol prohibition in the United States and in England may shed some light on how best to avoid an explosion in marijuana use. It is true that, in the United States, when alcohol prohibition was repealed, the death rate from liver cirrhosis rose dramatically. This leading indicator of alcohol abuse, by contrast, remained steady in the United Kingdom for several years following repeal of their wartime prohibition. An analysis by Milton Terris, M.D., contends that a combination of strict limits on hours of availability, increasingly high taxes, anti-alcohol education, and treatment of alcoholics, was responsible for the success of the British system. In the United Kingdom, the death rate from cirrhosis actually declined for several years after prohibition's repeal (Terris, 1967).
In contrast, the American system of laissez-faire legalization, combined with the alcohol industry's largely successful opposition to antialcohol education efforts, seemed to create an immediate, continuing increase in the number of cirrhosis deaths in the United States. This is not an absolute gauge of the success or failure of either the British or the American system, yet it does give an indication that more effective approaches exist.
Applying the lessons of history to the marijuana laws, we can observe that any attempt to repeal marijuana prohibition must be approached carefully. For instance, granting the existence of problems with alcohol and tobacco legalization, it may be appropriate to first reform those systems of regulation and control in order to facilitate the effort to discourage use of those two drugs. Then, after making these changes, a similar system should be put in place that would regulate and control the use, production, and distribution of marijuana, while at the same time discouraging abuse and first use of marijuana.
Such discouraging mechanisms include, yet are not limited to, the following: age limits; restrictions against some forms of marketing and merchandising that may be seen as glamorizing the drug; a complete ban on advertising; prominent display of medically legitimate health warnings; and pricing structures that discourage consumption while denying criminal drug dealers market supremacy.
The system for legal marijuana would need to be flexible, since the effects of marijuana legalization, pro and con, can only be guessed at. Yet, it is vital to get past initial objections and begin coming to grips with the practical necessities of dealing with drugs. It is easy to dismiss the notion of marijuana legalization as long as no plan has been officially formulated at the federal level to handle such a change in policy.
Efforts at the federal level should thus be directed toward developing a scheme for marijuana distribution, regulation, and control that would be acceptable to a plurality of the public. States would then have the option of adopting such a system or maintaining some sort of prohibition, much as states have the option of prohibiting alcohol sales and production.
Appropriate taxes and user fees would be levied in order to fund substance abuse prevention efforts. Such a system, with appropriate discouraging mechanisms built in, would send the message that marijuana is no more acceptable when legal than it was when illegal. It is only the current methods of control that are inappropriate and must be altered.
Once the stigma of criminalization is removed, the relatively few users who develop abuse or dependence problems could come forward and get help. Taking the marijuana market out of criminal hands would ensure purity, quality controls, and the like. It would also eliminate the possibility that the dealer, motivated by greed, would entice the marijuana user to try harder, more dangerous (and more profitable) drugs.

CRIME/PRISONS

The most obvious area to feel the impact of the legalization of marijuana is the criminal justice system. There are two groups of offenses that must be looked at in this context: (1) actual drug offenses, e.g., possession, cultivation/production, sale; and (2) drug-related offenses, e.g., theft and other property crimes for gain, and trafficking-related violence.
In terms of the first group of offenses, the role of marijuana is unusual. The number of persons actually incarcerated for simple possession of marijuana is small compared to the total number of prison and jail inmates in the United States. Yet, arrests for simple marijuana possession make up a large part of total annual drug arrests (see above). A great deal of police and court time is squandered pursuing throwaway arrests.
One of the most pressing problems that this situation creates is the impression of selective enforcement of the laws. This problem was noted as early as 1972 in the Shaffer Commission's report. It states: "On top of all this is the distinct impression among the youth that some police may use the marihuana laws to arrest people they don't like for other reasons, whether it be their politics, their hair style or their ethnic background. Whether or not such selectivity actually exists, it is perceived to exist" (National Commission on Marihuana and Drug Abuse, 1972).
This impression is inevitable when the number of marijuana arrests is compared to the number of marijuana users. Even using the government's conservative estimate of marijuana users (12 million regular users), only 2% or 3% of these people are arrested each year. The law is violated with impunity, the only harm done being directed against the offender herself or himself. It is thus questionable what business the state has interfering in the private affairs of some individuals based on their use of a weed.
The other aspect of drugs and crimecrimes committed under the influence of a drugis one about which there is some confusion. A great deal of concern is expressed over the involvement of illegal drugs in crimes. As the U.S. Bureau of Justice Statistics reported in 1988, "Concern over the use of drugs and a belief that such use leads to criminal activity has long been an issue in American society" (Innes, 1988). Yet, the government's own statistics contradict, not support, this relationship.
A new program for measuring the prevalence of drug use among arrestees, the Drug Use Forecasting (DUF) program of the Department of Justice, reveals that anywhere from 53% to 90% of male arrestees test positive for illicit drugs. This statistic is of dubious value, however, since only a fraction of the nation's total annual arrests result in adjudications of guilt (U.S. Department of Justice, 1989). No data is available on the disposition of the cases included in the DUF program. It is thus impossible to know the number of persons testing positive who are actually guilty of any crimes. It is also possible that DUF's results are skewed by the inclusion of a number of small-scale drug arrests, including possession offenses, in the DUF program reports.
Studies on state prison inmates reveal some connection between daily use of heroin or cocaine and property crime, although only about one-third of the total number of these offenders was reported to be under the influence of these drugs at the time of their offense. A far stronger connection was found between use of alcohol and crime, particularly violent crime. At least 40% of the violent offenders were reported to have been under the influence of alcohol at the time of their offense (Innes, 1988).
The chicken-and-the-egg discussion over which comes first also arises when discussing drug use and crime. As the Bureau of Justice Statistics notes:

An alternative view of the relationship between drugs and crime holds that drug use does not directly cause criminal behavior, but the same circumstances that might lead a person to begin committing crimes may also contribute to the development of drug habits. For example, social conditions, including poverty and discrimination, may limit opportunity and reduce an individual's investment in society, leading to both drug abuse and criminal behavior. Also, some people enjoy taking risks and are willing, for whatever reasons, to violate laws or norms, or they seek possessions or experiences that are not available by legitimate means. The use of drugs, especially on a regular basis, may not occur among such persons until after they have begun a career of criminal activity. Drug use may thus be only part of a more general lifestyle that also includes other types of criminal activity.... (F)or some prison inmates drug use began prior to other criminal activity and may have contributed, either by lowering inhibitions or by generating a need for money, to a developing criminal career. For many others, drug use, particularly regular use of a major drug, started only after their criminal careers had begun. (Innes, 1988)

TAX REVENUE

The impact marijuana legalization would have on tax revenues would be felt in two ways. First, the tax money currently funding efforts at marijuana suppression and eradication would be redirected. This much is obvious, since marijuana would no longer be contraband.
How this funding redirection would effect overall antidrug spending is difficult to gauge. There might not necessarily be a "peace dividend." The funds would need to go to enforcement of other drug laws; those against cocaine, heroin, PCP, and hard drugs, and whatever other drugs are still illegal.
In addition, some funds would need to be devoted to the regulatory system set up to control production and distribution, at the state and federal levels. This funding need would eventually be offset by taxes on both the marijuana sales as well as taxes on the income derived from such sales, licensing fees, and so on.
It is also difficult to measure just how removing marijuana from the list of crimes that our police enforce would effect police functions and efficiency. Noting the tremendous number of marijuana possession arrests performed each year, it is evident that some police time could be redirected toward dealing with serious problems and violent crimes. This also means clearing the courts, jails, and prisons of marijuana offenders-not only users, who would no longer be criminals, but also dealers and cultivators, who would be outmoded and put out of business.
Currently, control over the marijuana market is left in the hands of the criminal black market. As such, proceeds from marijuana sales are kept in the underground economy. The profits go untaxed, and the money generated is kept off the books. Fortune magazine estimated the potential tax earnings from legal marijuana sales at $11 billion per year, and that only accounts for taxes on the marijuana, not including taxes on the income generated by the legal sellers, distributors, and producers (Kupfer, 1988).
Some opponents of legalization argue that it is inappropriate for society to profit from drug use. Such a policy, it is argued, puts the state into the position of promoting drug use.
Legalization supporters counter that people in general use drugs of one kind or another, mostly legal ones. Thus, the responsibility of society is to ensure that relatively safe drugs are available, although discouraged, while the relatively dangerous drugs should be less available and more actively discouraged. The United States already taxes alcohol and tobacco, the two worst public health problems our society faces. Society would profit tremendously from legal marijuana sales if we decide to take advantage of the market already in existence.

IMPACT ON SOCIETY, DRUG USE

Finally, what would a society with legal marijuana look like, and what would be the impact on drug use in general? We can look toward The Netherlands for part of the answer, although we would certainly not get the full picture since marijuana and hashish are still officially illegal in The Netherlands. Their policy of tolerance toward soft drugs has, however, resulted in effective decriminalization of use and transfer of small amounts of cannabis.
In spite of this acceptance of cannabis, use rates by both youth and adults are much lower than the reported rates in other European countries or in the United States (van der Wal, 1985; van de Wijngaart, 1987). In addition, the rate of heroin addiction in The Netherlands is reported to be slowly decreasing from its current estimated rate of 0. 14% (much lower than the United States), and the crime rate, stable since 1984, may be falling (Drug Abuse Education Newsletter, 1988).
While it is true that the United States is not The Netherlands, the example of the Dutch system provides at least an indication that marijuana legalization would not be the disaster that opponents say it would be. Indeed, if marijuana legalization means people would avoid use of alcohol or hard drugs and would use marijuana instead, the net result would be positive, since the harm both to the user and the society would be less. Critics claim that the number of marijuana users would increase after legalization. It must be conceded that this claim may be true in some respects, although the net result would hardly be the disaster opponents predict. After marijuana legalization there will be an increase in the number of people willing to admit that they are marijuana users, because a significant number of users will no longer fear admitting their use. NORML estimates that there are currently some 30 to 50 million regular marijuana users in the United States, many more than the government's reported 11.8 million. Thus, an initial explosion in the number of users is likely, is no cause for alarm, and is easily understood.
Some "new" users who really would be using marijuana for the first time may formerly have been users of alcohol, a drug that is more dangerous than marijuana. Although these people would still be using a drug, they would be doing less damage to themselves than they would have otherwise. Thus, less harm would result from their drug use than would have occurred under marijuana prohibition.
It is likely that a period of a few years would be needed to stabilize the marijuana using population, and to begin reducing the number of users. Yet as the example of The Netherlands proves, it is possible to reduce the number of users without imposing criminal or even civil penalties against them. The first problem is getting a true handle on the extent of marijuana use.
There would probably be a need for a vigorous campaign to reduce the risk of abuse and to discourage first use. The experience of American society with reduction of tobacco use should provide the groundwork for setting up a discouragement campaign against marijuana use.
It is difficult to predict the effects of legalization precisely because we have so little experience at legalizing a social drug. The example of the repeal of alcohol prohibition, as noted above, left a bitter taste because of the immediate rise in abuse indicators, specifically cirrhosis deaths. Arguably, American society has learned a great deal in the more than 50 years since alcohol became legal. NORML contends that the United States has matured since then, and that a responsible plan for production, distribution, and regulation of marijuana can be developed; indeed, such a plan was formulated in 1981 (Evans et al., 1981).
The concern over what message is being sent by legalizing a drug is understandable, and legitimate. The message, however, is not a negative one. The drug suggested for legalization is marijuana, a reasonably safe drug if used responsibly, a drug that has never caused an overdose death (Grinspoon, 1987; Young, 1988).
Legalization with age limits for purchase and use is the only way to prevent underage use; few criminal dealers ask for proof of I.D. before making a sale. Indeed, the concern should be over what message is sent when society makes alcohol and tobacco, both deadly and addictive, legally available, and prohibits marijuana, a relatively less dangerous drug. The message is obviously not one of concern for the society at large, nor for the health of the individual user. At best, no intelligible message is discerned. At worst, the society is thought of as hypocritical and culturally biased.

CONCLUSIONS

What, then, is the future of marijuana in America? The direction in which our government is currently heading is toward more enforcement and tougher penalties. This direction, however, leads inevitably to a dead-end. In more than 50 years, prohibition of marijuana has failed to stop marijuana use and abuse. It has instead created a large criminal class out of citizens who are otherwise law-abiding, peaceful, productive members of society. Those citizens who have not had their lives and careers ruined by an arrest have to live in fear and mistrust of their own government and the police. Meanwhile, the problems created by the legal drugs alcohol and tobacco go largely unabated. Citizens who decide to use a drug recreationally have little legal recourse except these very dangerous drugs. Something must change.
A better system for managing marijuana use would involve civil regulation, taxation, and control. Such a system could take one of many forms. The system would be set up to guarantee the licit availability of good-quality marijuana at reasonable prices (below criminal market levels), while at the same time discouraging first use and abuse with age restrictions, honest health warnings, restrictions on availability, and other mechanisms. The financial impact from legalized marijuana would be positive, from enhanced tax revenue as well as redirection of current antidrug expenditures. The effect on criminal justice would be to free considerable police time to deal with other, more serious problems. The experience of The Netherlands shows that the societal impact would not be negative overall, and in fact would be positive in reducing rates of abuse of marijuana and other substances.
Marijuana legalization is a good idea, whether in fashion or not. American society needs sensible, rational answers to such pressing problems as the nation's drug problems. Legalizing marijuana can help. It is time to take a fresh look.

van der Wal, H. J. (1985, March). Forward to Sylbing, G. The use of drugs, alcohol and tobacco. Foundation for the Scientific Study of Alcohol and Drug Use.

van de Wijngaart, G. F. (1987, June). The normalization of cannabis use. Paper presented at the 16th International Institute on the Prevention and Treatment of Drug Dependence, Lausanne, Switzerland.

Young, F. L. (1988, September 6). Opinion and recommended ruling, findings of fact, conclusions of law and decision of administrative law judge. In The Matter of Marijuana Rescheduling Petition, Docket No. 86-22, Administrative Law Court of the Drug Enforcement Administration, p. 58-59.